THE REBEL STATES 



THE PRESIDENT 



CONGRESS. 



Reconstruction, and the Executive Power of Pardon. 



NEW YORK'. 
E. S. DODGE & CO., STEAM PRINTERS, 

8 4 John STREET. 
1866. 



E 668 
.A53 
Copy 1 



THE REBEL STATES 



THE PRESIDENT 



CONGRESS. 



Reconstruction, and the Executive Power of Pardon, 



NEW YORK: 
E. S. DODGE & CO., STEAM PRINTERS, 

a i Jo II N Si r i: ET. 

1866. 






CONCLUSIONS : 

A State Government may be dissolved and < longress alone has 
the power of reconstruction. 

A pardon by the President before conviction, unless in execu- 
tion of a law of Congress, is unauthorised by the ( 'onstitution, and 
is therefore nidi and void. 

( Jongress alone has the power of authorizing a general or par- 
tial amnesty, by which claims to property liable to confiscation to 
the Tinted States are remitted or impaired. 



If the argument be sound it matters not who urges it. 



TO WHOM IT MAY CONCERN. 

In his late message to Congress, our worthy President, An- 
drew Johnson, gives his own views at considerable length re- 
specting the general government, and its relation to the several 
States of the Union ; and after showing that " States/' — 
(the Constitution says nine) — are essential to the existence of 
the Constitution of the United States, and that the Union of 
the States was intended to be perpetual, adds, " the perpe- 
" tuity of the Constitution brings with it the perpetuity of 
" the States." * * * " In our political system their 
" connexion is indissoluble." * * " So long as the Con- 
" stitution of the United States endures, the States will en- 
" dure. The destruction of the one is the destruction of the 
" other ; — the preservation of the one is the preservation of 
" the other." 

After this explanation of his views he goes on to say : 
' • I found the States suffering from the effects of civil war. 
-:.:- ;.:- u q^ arm i es ( G f the United States) were in pos^es- 
" sion of every State which had attempted to secede. Whether 
" the territory within the limits of those States should be 
" held as conquered territory under military authority ema- 
" nating from the President as the head of the army, was the 
" first question that presented itself for decision." 



The President informs Congress that he has assumed the 
decision of this great question ; and gives in detail his action 
in reference to it. " To that end Provisional Governors have 
" been appointed for the States, Conventions have been called, 
" Governors elected, Legislatures assembled, Senators and 
" Members of Congress chosen to the Congress of the United 
" States." 

In this sentence the President referred to the well known 
fact that he had deposed existing Governors, — had prescribed 
the qualifications of electors, and in some cases had set aside 
elections which had not taken place according to his views. 
That he had exercised the pardoning power before trial or 
conviction, and had invited the States which had lately been 
in rebellion and had levied war against the Union, to resume 
their functions as States of the Union, and " participate in 
the high office of amending the Constitution by ratifying the 
proposed amendment." This he regards as the sole condition 
of a general amnesty, and adds : " The amendment of the 
Constitution being adopted it would remain for the States" 
(lately at war and now conquered,) " to resume their places 
in the National Legislature." 

Thus the President, whose powers and duties are clearly 
defined in the Constitution, informs Congress of the mode by 
which he has undertaken to carry out the laws respecting 
Treason, and to wash the bloody hands of conquered rebels, 
whether repentant or not, and to place them upon a par with 
loyal citizens — the survivors of the many thousands who have 
been maltreated and murdered, or inhumanly starved to death 
by the agenis of these same States who had confederated to- 
gether and levied war against the United States ! 

The President does not say whence he derived authority 
for the exercise of this vast power. It is, however, of the 
first importance to all concerned, that the measures adopted 



for the "reconstruction" of "disrupted" State Governments 
shall be in accordance with the supreme law of the land ; 
because if the powers necessary to that end lie with Con- 
gress, then the action of the President, without the consent 
of Congress, is unauthorized, and therefore " null and void." 
In order to decide this question it is proper to consider the 
steps necessary " to construct" a State. 

The first thirteen States became united under articles of 
confederation before they obtained their independence of 
Great Britain. When they became independent of her they 
were bound together by an agreement of " perpetual union." 
Not any one of them could have achieved its independence 
alone ; and in fact they never were independent as States. 
When independent of Great Britain they were dependent 
upon each other ; and in order to "a more perfect union," 
they voluntarily adopted the present Constitution, and became 
parts of a neiv Nation, ivhich thus acquired the rights of 
eminent domain over the whole. 

As the population increased and occupied portions of the 
vast territory belonging to the nation, new States were formed 
and admitted into the Union, on equal footing with the origi- 
nal States, under Constitutions which were adopted by Con- 
ventions of the people, and approved by Congress. 

A State thus formed was an organized government over a 
limited portion of the territory of the United States, to ena- 
ble the inhabitants to regulate their internal affairs according 
to the will of the majority ; and to take part in the general 
government under the Constitution of the United States. 
The object oi forming a new State was not intended to im- 
pair the jurisdiction of the general government. It was in 
all cases a privilege conferred by Congress upon a portion of 
the people for well understood objects and conditions. The 
constitutional authority is as follows ; " New States may be 



6 

" admitted by Congress into this Union ; but no new States 
" shall be formed or erected within the jurisdiction of any 
" other State, nor any State be formed by the junction of hvo 
" or more States, or parts of States, without the consent of 
" Legislatures of the States concerned, as well as of Con- 
" gress." Art. 4, Sect. 3. 

This power, thus conferred upon Congress, to grant a 
great privilege, implies the power to forfeit it when the 
conditions of the grant are violated and set at nought. The 
acceptance of this privilege necessarily assumed the obliga- 
tions and prohibitions contained in the Constitution. The 
violation of the latter would seem to rescind the former at 
the option of Congress. 

President Johnson appears to assume that each and every 
State is "indissoluble," and will necessarily endure "so long- 
as the Constitution of the United States will endure;" and 
that the destruction of one would be the destruction of the 
other. If the language used is intended to embrace all the 
States, then it is only another mode of saying that ' if the 
Government of the United States were destroyed there would 
be an end of it!' But if he intends to apply this remark to 
the individual States— or to one-fourth of the whole — snen 
an assumption is in palpable contradiction of the above clause 
of the Constitution, which provides for the destruction of 
one or more States by the formation of one out of several. 
If the State of New Jersey were at this session to apply to 
Congress to be united to New York or Pennsylvania, in order 
to get out of the power of the Camden & Amboy Railroad 
Company, alleging that by reason of bribery and corruption 
the functions of the State Government have been practically 
destroyed and made subservient to that " soulless corpora- 
tion," by which the citizens of other States are taxed for the 
privilege of passing over it, in direct violation of the Consti- 



7 

■ 
tution of the United States, who can doubt that Congress 
would immediately consent to the proposition ? Neither can 
any man, out of New Jersey, doubt that President Johnson 
would approve such a measure. 

The mere provision of the Constitution to admit new 
States upon the application of a majority of the people, 
implies the right and the power of all the parties concerned 
to put an end to the State Government when they mutually 
agree to do so. And when any State, through any sufficient 
action of its legislature and executive, expresses the consent 
and proves the desire of a majority of its people to put an 
end to its condition as a State of the United States, it would 
seem absurd to deny to the latter the option of accepting 
and of acting upon the desire so expressed. But the only 
effect of such action, in the absence of any other arrange- 
ment, would be to reduce the State to the condition of a 
Territory; and then it would devolve upon Congress "to dis- 
pose of and make all needful rules and regulations respecting 
it." 

President Johnson says that a State cannot commit treason, 
because all its actions in violation of the Constitution are 
" null and void." The same reasoning would necessarily in- 
clude all the acts of individuals which are in similar violation. 
The Constitution makes no distinction. It prohibits the 
States from doing various enumerated acts, and amongst 
them are the elements of treason. It defines treason as the 
act of "levying war against the United States, adhering to 
" their enemies or giving them aid and comfort;" and it gives 
to Congress the power to declare the punishment of treason. 
The actions of a State under the Constitution differ from 
those of an individual only in so far as they are the actions 
of an organized society of men. Any such acts in violation 
of the Constitution are indeed " null and void" as to legality, 
but not as to consequences. 



Who will deny that the several States lately in rebellion 
did each, in their capacity as States, commit those several 
acts which are defined as treason against the United States ? 
They appropriated money : and raised men and sent them 
forth to levy war against the United States. President 
Johnson says of these acts that they were not acts of the 
State, but of certain " individuals." But who are the parties 
to the overt acts of treason — the officer of the State Govern- 
ment acting under its direction, or the authority in obedience 
to which he acts ? 

It may be said that all the persons engaged in the acts, 
are guilty of treason. But if these have been elected by 
a majority of the people to do the acts complained of, then 
on the ground that what is done by an agent is done by 
the principal, it follows that the people of the State, from 
whom the power to act was derived, are all involved in the 
offence. The definition of treason in the Constitution applies 
to all who commit it, whether as principals, or as agents. A 
conviction of the Governor and Legislature of a State, for 
acts performed in obedience to the voice of a majority of the 
people, would seem to be the conviction of the State au- 
thority, and of all the individuals who conferred or made that 
authority. And as a traitor under existing laws forfeits both 
life and all rights of property, so may a State government 
as such. 

But if the question be confined to individuals, and all the 
officers of the State government be convicted, then the de 
facto government would be practically destroyed ; and if a 
majority of the people be involved in the treason there would 
remain no constitutional means of reconstructing the State 
government without the action of Congress. 

However the subject may be viewed by Congress, it is very 
evident that it ought to be set at rest by an express declara- 



tion in the Constitution of the United States, to the effect 
that Treason and Rebellion against the United States, by the 
authorities of any State, elected for that purpose by a major- 
ity of the electors, or allowed by the people thereof to carry 
out such purpose, shall be held as a surrender or forfeiture of 
all the rights and privileges of a State; and that the territory 
comprised within its limits, shall thereupon become and be 
treated, in all respects as a Territory of the United States, 
subject to the disposition of Congress; and all ports of entry 
therein shall thereupon be immediately closed by proclama- 
tion of the President of the United States; and any vessd, 
after notice thereof, entering or attempting to enter such 
closed port, from any foreign port, shall be subject to seizure 
and confiscation, whenever thereafter found, on the high seas, 
or within the jurisdiction of the United States ; and all 
treaties with foreign governments shall be made subject to 
this condition, so that no question adverse thereto shall be 
raised on account of any such seizure and confiscation. 

The Constitution provides that " Congress shall have 
power to declare war, and to make all rules concerning cap- 
tures by sea and land." Art. 1, Sect. 8. During the late 
civil war many captures were made, both by sea and land — 
and thus became the property of the United States. The dis- 
position of all this property is expressly given "to Congress, 
and not to the President. There is nothing in the Constitu- 
tion to authorize him to dispose of such property in any way 
except as the executive of the laws of Congress. He is bound 
to inform Congress of the state of the Union " and recom- 
mend for their consideration such measures as he shall 
judge necessary.'" " He may on extraordinary occasions, 
convene both houses'' of Congress ; but further than this 
there is no authority to act beyond existing laws, except so far 
as the necessities of a state of war may require, in order " that 
the laws be faithfully executed." There is absolutely nothing 



10 

ill the Constitution to justify the President in his action to- 
wards what he calls " the work of restoration." If the rebel- 
lious States which have been conquered and captured, still 
remained " States" of the Union, and competent to act as such, 
without the aid of Congress, whence the authority of the Pres- 
ident to treat them as Territories ? By what authority has 
he deposed one governor and set up another ? If the people 
of a State have lost the power of choosing their own Gov- 
ernor without the aid of the President of the United States, 
surely they are no longer in the condition of a " State," but 
of a •'Territory ;" and if in the condition of a Territory the 
President cannot convert them into a State ! The suppres- 
sion of the rebellion and the capture of all the rebellious 
States was surely an " extraordinary occasion," which would 
have justified, if it didn't require the President to convene 
both houses of Congress, and " recommend for their consid- 
eration such measures as he may have judged to be neces- 
sary." He had no right to act beyond this. 

The President says he has asserted the power of pardon 
towards the general object of " restoration." By this he has 
attempted to remove the great objections above alluded to 
against the people who, by reason of their treason, were dis- 
qualified from performing the functions of a State govern- 
ment. What then is " the power of pardon" conferred upon 
him by the Constitution. " The President shall have power 
" to grant reprieves and pardons for offences against the 
" United States, except in cases of impeachment." 

The construction of this clause of the Constitution is ex- 
pressly limited by a subsequent clause as follows : " The 
'" Congress shall have power to dispose of and make all need- 
" ful rules and regulations respecting the territories and other 
"property belonging to the United States, and nothing in 
" this Constitution shall be so construed as to prejudice any 
u claims of the United States, &c." Art. IV, Sect. 3. 



11 

The words reprieves and pardons imply judicial trial and 
condemnation ; and cannot be fairly construed as a right of 
absolution for past offences, or to screen an offender from 
lawful punishment ; — much less to interfere with the rights 
of Congress over captures by sea or land, or other property or 
claim to property. As all men are presumed to be innocent 
until adjudged to be guilty, it is evident there can be no pun- 
ishment before conviction. The forfeiture of property to the 
United States is a punishment, and follows conviction. But 
a pardon before trial, if valid under the Constitution, would 
necessarily prevent all punishment. It would restore the of- 
fender to the position which he held before the offence ; and 
place him in full possession of all his property. To that ex- 
tent it would "dispose of property belonging to the United 
States," or " prejudice its claims," contrary to the express 
provision of the Constitution in this regard ! 

Take the case of Jefferson Davis, or General Lee. Both 
have large property which has been captured by the forces of 
the United States, and to which, by reason of their treason, 
the United States have both possession and a claim. The 
President of the United States can have no right, in the face 
of the above prohibition, so to construe the clause respecting 
reprieves and pardons as to deprive the Government of its 
possession or its claims against the properties of Davis and 
Lee ! Hence it is clear that a pardon before conviction, 
which operates to the prejudice of any claims of the United 
States, is no t only unauthorized but prohibited! Congress 
alone has power to dispose of such property or claims ; and 
all action of the President to that effect is contrary to the ex- 
press provision of the Constitution, and therefore null and 
void ! This would seem to apply also to all pardons before 
conviction ; because the construction of the clause in the Con- 
stitution cannot be varied by the pecuniary circumstances of 
the offender. If it prohibits a pardon before judgment in the 



12 

case of the owner of property, it must be equally controlling 
in other cases. Hence it follows that the President has no 
power without a law of Congress to that eifect, to proclaim a 
general or partial amnesty. 

It must be a great disappointment to all who have received 
pardons from the President before conviction, to find them of 
no more value than so much waste paper. It may perhaps 
embarrass the President, and many others, in his plan of res- 
toration. But this is of little moment when compared with 
the importance to all concerned of having this great subject 
disposed of under the powers and authority of the supreme 
law of the land, and not in the least degree in violation of it. 

It may be said that if the condition of the late rebel States 
be such as assumed above, then the ratification of the amend- 
ment to the Constitution, which was given by the represen- 
tatives of the people of those States, cannot be counted with 
the loyal States who have ratified it. If this be so it makes 
no material difference. The action of the people of the ter- 
ritories would be conclusive so far as they arc or may be con- 
cerned in any aspect. But if it be held that the States which 
rebelled lost their position as States, then it follows that the 
action of three-fourths of the existing State Governments was 
sufficient. Hence there can be no question as to the validity 
of the amendment which prohibits slavery under the United 
States Government. 

It is conceded, on all hands, that the Nation is under seri- 
ous obligations to a large class of its inhabitants. The Pres- 
ident refers to them with kindly interest, and none can doubt 
his sincerity or his honesty. The Secretary of War in his 
Report for Congress, uses this strong language : " Proper 
'•provision for the colored population, whose social position 
" has been changed by the Government for its own purposes 
"in the conflict, is a solemn duty. More or less resistance 
" may be expected so long as any rebellious spirit remains. 



13 

« 

" But the obligation to perform it is not diminished, neither 
" can it be evaded or turned aside with National honor or 
" safety." 

It is believed by many that unqualified absolution to 
the traitor, is treason to the State. If therefore a general 
amnesty to all concerned in the late rebellion would accord 
with sound policy, as well as with justice and safety to those 
who. under great personal suffering and loss, remained loyal, 
it should be so conditioned as to operate as a stay of legal 
proceedings against each subject of clemency, only so long as 
he shall abstain from violence towards loyal citizens, and shall 
observe and obey all laws of the United States made in 
reference to the Freedmen; and in case of violation of such 
laws, or of any violence towards loyal citizens as such, the 
offender shall be subject to immediate arrest and trial for 
treason, to the same extent as if no amnesty had been granted 
or contemplated on his or her behalf. 

But whilst a conditional amnesty may be made to shield 
the Freedman from violence, it will not fulfil the obligations 
which the Government owes to him and his dependents, lie 
should at least have standing room — some place where he 
may be able, in case of necessity, to provide for himself 
and family food and raiment, and exercise his inalieca- 
ble right — the pursuit of happiness — without being de- 
pendent upon those who formerly held him as a slave. 
If many, or even if all former masters were kind and in- 
dulgent to their slaves, this is no adequate reason to entrust 
the happiness of a free -people to the will or caprice of others. 
The Freedmen cannot be safely left in ignorance, and unable 
to read and understand the laws which they are required to 
observe. Neither is it consistent with justice that they 
should have no voice in the enactment of laws under which 
they are called upon to bear their portion of the public 
burdens. The history of the Freedmen in the West Indies 



14 

shows that in all cases in which they have been treated with 
justice and kindness, the inhabitants of the land have enjoyed 
unparalleled prosperity. But in those instances in which 
the planters have sought to hold the people in a state of 
slavery, under the name of Freemen, discontent, and misery, 
and adversity, have cursed the land, until at length some of 
the people have been goaded into riot, which has been made 
the pretext for one of the most inhuman butcheries that can 
be found in the hideous catalogue of dark and bloody deeds ! 

If t the interpretation of the Constitution herein assumed 
be correct, it follows that President Johnson has taken erro- 
neous views of the grave subject upon which his message 
treats, and of his powers and duties in relation to it : that 
the " restoration" or " reconstruction" of the State Govern- 
ments which have been "impaired," " disrupted" or " de- 
stroyed" rests with Congress, and not with the President : and 
that Congress has full power To require the inhabitants of 
such parts of the United States to reconstruct their Govern- 
ments de novo, in the same way as heretofore provided for 
the admission of new States. 

But if, from any circumstances, Congress should not think 
such a course necessary in all cases, a sense of duty to the 
people of the United States will induce it to provide for the 
complete extinction of all rebellious spirit, and the most sub- 
stantial guarantees of justice to all the inhabitants, before 
they are admitted to any share in the general government. 
Any thing short of this will be more dangerous to the general 
welfare than the system of government which has heretofore 
been adopted for the Territories; and which can be changed 
as soon as the people of any section adopt and present to 
Congress a constitution made in accordance with the supreme 
law of the land. 

The condition of the people of the South is such that with- 



15 

out material aid, a long time will elapse before they recover 
their prosperity. There appears but little confidence be- 
tween the white and the colored population. Perhaps most 
of the land holders are deficient in money with which to pay 
the laborer for his work ; and the latter cannot be expected 
to work without prompt payment. Having tenacious memo- 
ries of the past they may prefer to depend upon a precarious 
means of existence rather than take the chances of future 
payment for their labor. It is manifestly the interest of the 
Government that the land be cultivated without delay, to the 
best advantage. By this means alone the public revenue can 
be fully realized. In proportion with the quantity of the sta- 
ples of the South to sell, will be the internal revenue derived 
from them ; and also the ability of the people to consume 
the imports from other States, and from abroad, upon which 
revenue is collected. If Congress could devise a safe mode of 
pecuniary aid, the industry of the people of the South might 
be promptly set in motion ; and it is not unreasonable to as- 
sume that it would soon yield a large return in the shape of 
revenue. Such aid would have a happy effect in harmonizing 
the discordant elements of the Southern population ; and in 
reconciling all parties to the highest limit of export duties by 
which foreign nations, who, under a transparent drapery of 
hypocritical friendship, have exhibited their hostility to the 
United States, and rejoiced over our calamities, may be made 
to pay a fair proportion of the national debt. It might also 
be coupled with a system of general education, and in other 
respects be made conducive to the general welfare. 

AMICUS. 
New York. January 1st. 1866. 



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L1BKRKY OF CONGRESS 



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